Many have noted similarities between Operation In Our Sites and the pending Combating Online Infringement and Counterfeits Act (COICA), which would create enhanced civil forfeiture mechanisms against websites dedicated to infringing activities. Both the Operation and COICA target the domain name of these websites; both result in blocking the domain name from resolving to the website.

And, like COICA, critics of Operation In Our Sites have raised concerns that these domain name seizures lack due process and violate the First Amendment. I previously addressed these two issues as they relate to COICA; today, I want to take a look at them in the context of these domain name seizures.

Seizure vs. Forfeiture

The first step in understanding what is going on here is making a distinction between seizure and forfeiture. It’s easy to get the two confused, but they are separate concepts, and the government has to play by two different (but sometimes overlapping) sets of rules to stay within constitutional bounds.

Seizure is the act of taking custody of property. Most of us are probably most familiar with seizure of property that is evidence of a crime: when police find the murder weapon during a search, they can seize it — take temporary possession of it — for further examination and for use at trial. But property is also typically seized prior to forfeiture proceedings. 1Most property, that is, as we’ll see later. A court only has authority of property within its territorial jurisdiction, and it can only assert that authority when the property has been taken into its custody. 2Dobbins’s Distillery v. United States, 96 US 395 (1878).

The US Constitution lays out specifically what is needed for a seizure to be lawful. The Fourth Amendment states that “unreasonable” seizures are prohibited, and property may only be seized when accompanied by a warrant, issued “upon probable cause” that describes with particularity the “things to be seized.”

Forfeiture is the “involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime.” 3West’s Encyclopedia of American Law, edition 2. Property may be forfeited as part of a sentence for a criminal conviction, or the government may seek forfeiture in and of itself through a civil in rem proceeding against the property. Civil forfeiture is limited to those types or classes of property set by statute. In civil forfeiture cases, the government has the burden of proving by a preponderance of the evidence that property was used in or derived from prohibited activities.

In short: property is seized to commence a civil forfeiture proceeding, and it is forfeited if it was used in the commission of a crime. This principle has been followed for centuries: British politician and lawyer John Sadler wrote in 1649, “No forfeiture before conviction; no seizure before indictment.” 4John Sadler, Rights of the Kingdom, pg. 281.

The US government may use civil forfeiture to enforce copyright laws against:

(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A). 518 US Code § 2323(a)(1).

So, contrary to some descriptions of COICA, the authority to initiate forfeiture proceedings against domain names of websites involved in the commission of copyright infringement already exists. COICA merely enhances these forfeiture proceedings (for example, by adding requirements for advertising and financial transaction providers to take reasonable measures to block their services from forfeited domain names). However, whether the government pursues civil forfeiture against domain names under COICA, should it pass, or under existing law, the first step in that process would still involve what occurred on November 29th: the seizure of those domain names.

Seizure and Due Process

Most of us generally don’t question the authority of the government to seize property that is evidence in a criminal trial. If police have a warrant to look for a murder weapon, and they find it, they can bag it up and remove it from the owner’s possession.

But as mentioned above, property may also be seized pursuant to a warrant to be forfeited in and of itself. While some may find this practice troubling — especially if the government is seen as too aggressive in seizing property — the constitutional requirements for this type of seizure are largely the same as seizing property for evidence.

When it comes to the practice of seizing domain names, the question is: should the same rules that govern the seizure of ordinary property apply, or do domain names present special circumstances that require stricter rules of due process for their owners?

In making the claim that domain names present special circumstances, critics of the seizures seem to want to have their cake and eat it too. They say these seizures are unconstitutional — they should be subject to higher standards of due process because owners of domain names are being deprived of something more than owners of all other types of property subject to seizure. But at the same time, they say these seizures are ineffective because the owners aren’t being deprived of anything — they still have their content and servers, their sites can still be accessed by IP address, and in many cases, the owners have registered new domain names for their sites within hours of the seizures.

The Fifth Amendment states that “No person shall … be deprived of life, liberty, or property, without due process of law.” Generally, “due process” requires notice and a hearing. When it comes to seizure, the question boils down to whether the notice and hearing must occur before the government seizes property, or whether the hearing can occur after.

For most of history, the Supreme Court has held that notice and hearing after property is seized is sufficent; the Fourth Amendment requirements of probable cause and specificity for seizures satisfies due process. However, the Court has carved out exceptions to this principle. In 1993, in a forfeiture case involving real estate, the Court stated that the Fourth Amendment “does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings” — forfeiture proceedings must also comply with “well-settled jurisprudence under the Due Process Clause.” US v. James Daniel Good Real Property held that the government must provide notice and hearing before seizing real estate it wishes to forfeit.

The reasons for this exception were provided by the Court. “The practice of ex parte seizure … creates an unacceptable risk of error.” The government’s interest in this practice must be balanced with this risk. Primarily, the Court noted that since real estate can’t move, courts can establish jurisdiction over it without seizure. Thus, there is no pressing need to delay notice and hearing until after real estate is seized.

Notably, three justices dissented from this holding, noting that there was no basis in existing case law for the Court to look beyond the Fourth Amendment in seizure cases and no logical reason to distinguish real estate from personal property:

“Our historical treatment of civil forfeiture procedures underscores the notion that the Fourth Amendment specifically governs the process afforded in the civil forfeiture context, and it is too late in the day to question its exclusive application. As we decided in Calero-Toledo v.Pearson Yacht Leasing Co., 416 U. S. 663 (1974), there is no need to look beyond the Fourth Amendment in civil forfeiture proceedings involving the Government because ex parte seizures are `too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.'”

Nevertheless, when it comes to real estate, due process typically requires a hearing before the property is seized.

Domain names are not real estate, and the reasons in James Daniel Good Real Property for requiring a pre-seizure hearing are not applicable to the seizure of domain names. The “risk of error” involved in seizing domain names is no higher than those involved in the seizure of personal property: the content and servers are still available to the owner, the site can still be accessed through the IP address, and it is relatively easy for the owner to acquire a new domain name — something many of those affected did within hours of having their domains seized.

Also, like personal property, domain names can be “moved” or “destroyed” as those terms are understood in the jurisdictional context. The situs of domain names is the location of the domain name registrar where the domain name is registered. As mentioned above, it is relatively easy for a website owner to register a new name overseas, removing the domain name from the court’s territorial jurisdiction.

Thus, the forfeiture of domain names present the same considerations that the Supreme Court has held justify postponing notice and hearing until after seizure in Calero-Toledo. The seizure permits the US “to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions”, domain names “could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given”, and “seizure is not initiated by self-interested private parties”, but by federal officials.

Seizure and the First Amendment

The argument is also made that these domain name seizures violate the First Amendment. Websites contain speech; ex parte seizure of websites, before a judicial determination that the content is not protected by the First Amendment (as is the case with infringing content) may be considered a prior restraint on speech. As we’ll see, the seizure of these domain names do not run afoul of First Amendment protections for many of the same reasons they do not run afoul of due process protections.

The Supreme Court has addressed the implications of the First Amendment in seizures most often under laws prohibiting obscenity. Obscenity is not protected by the First Amendment. Seizure of obscene materials, whether to use as evidence in a criminal trial or to initiate forfeiture proceedings, requires a close look by courts because of the risk that nonobscene, protected speech might end up being blocked.

In Quantity of Copies of Books v. Kansas, the Court reiterated its warning that “if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” This danger does not foreclose all seizures concerning speech, however. It merely means that the law requires certain procedural safeguards to protect against the abridgment of speech rights.

First, as the Court stated in Stanford v. Texas, “the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude when the “things” are books, and the basis for their seizure is the ideas which they contain.” There is no question that the government has met this requirement; the seizures were made pursuant to valid, specific warrants issued by a neutral, impartial judge.

Second, “because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.”6Heller v. New York, 413 US 483, 489 (1973). This does not mean that a judicial determination must occur before seizure. The Court in Heller v. New York said that it “has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Rather, “a judicial determination need only occur ‘promptly so that administrative delay does not in itself become a form of censorship.'” In effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.

The Court, however, upheld the seizure in Heller, and I think the reasoning is applicable to the seizure of these domain names:

In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of “promptness” those delays caused by the choice of the defendant. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pretrial motions and reserve the obscenity issue for trial.

The seizure of domain names is even less like a form of final restraint than the seizure of the film in Heller. Neither any content or servers containing the content were temporarily detained. The purpose of seizing these domain names is to establish and preserve in rem jurisdiction for forfeiture proceedings. The seizure doesn’t preclude access to the web sites or amount to a “form of censorship” — as stated above, one can access the site by IP address, and it is relatively easy for a site owner to set up a new domain name. Finally, domain name owners have full opportunity to challenge the seizures themselves through pretrial motions or a prompt judicial determination at a forfeiture proceeding.

Conclusion

The seizure of these 82 domain names satisfy both due process and the First Amendment. Criticism of this strategy on constitutional grounds is thus shaky. Critics may still question the rightness of the seizures, but as the Supreme Court pointed out over a century ago, “If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.” 7Springer v. United States, 102 US 586, 594 (1881).

The U.S. government has an obligation to ensure that U.S. copyright law is enforced in all markets, physical and online. Operation In Our Sites is but one example of many of how the Obama Administration recognizes the critical role copyright industries play in our economy, and individual artists and creators play in our economy and our culture.

I’m sure there will be some out there who criticize the seizure of these domains, just as there are those who criticize a bipartisan effort by lawmakers to facilitate the disruption of these for-profit online theft centers. Their criticism will begin with an assertion of the importance of copyright protection, then immediately be followed by a big “but.” (Any image that comes to mind from those last two words is wholly on you.)

Instead of constantly saying what they don’t like, maybe those critics could say that copyright enforcement is important, and follow with an “and,” i.e., “and we think the federal government should do x, y, and z to ensure successful enforcement.” If you don’t hear that “and” it’s probably because they weren’t sincere in the part before the “but.”

6 Comments

“I’m sure there will be some out there who criticize the seizure of these domains, just as there are those who criticize a bipartisan effort by lawmakers to facilitate the disruption of these for-profit online theft centers. Their criticism will begin with an assertion of the importance of copyright protection, then immediately be followed by a big “but.” (Any image that comes to mind from those last two words is wholly on you.)

Instead of constantly saying what they don’t like, maybe those critics could say that copyright enforcement is important, and follow with an “and,” i.e., “and we think the federal government should do x, y, and z to ensure successful enforcement.” If you don’t hear that “and” it’s probably because they weren’t sincere in the part before the “but.””

I challenge both of you to name three ways copyright enforcement is truly important. Copyright protection does not stimulate the economy in any way shape or form. It hasn’t brought new music to the table, it hasn’t created new works of art for anyone. All it seems to do more and more is become something to ignore. When DJ Danger Mouse created the Grey Album, he ran afoul of copyright laws. He gave away his music and yet, the labels still wanted to sue. You can find most of that music on Youtube where it’s popular with quite a number of people.

“There is ZERO reliable evidence that file-sharing hurts sales. A shared file does not equal a lost sale, any more than someone reading a library book is a lost sale.”

The more people who know who you are, the better. File sharing certainly helps spread brand awareness and name recognition, and it does so without any effort on your part.”

“Q: But Joe, if everyone steals your ebooks, how will you make money?
A: Show me an artist bankrupted by piracy, and we’ll revisit this question.

Q: No, seriously, in a future where everything is free, how will…
A: We’re not in a future where everything is free. But I’ll play the “let’s pretend” game. Let’s pretend that all ebooks are free. How will writers make money? The same way all media makes money. Advertising, merchandising, and licensing.”

What truly disappoints me about your articles is you’re stuck in all of the semantics of law, stating X, Y, and Z, But all of those rules truly show no basis on the impact of these laws. You say that these sites aren’t censored from this summer. Well… Where’s the proof? Where’s the people being able to tell their government that “I want my site back”? Where’s the court cases so that they can get these seizures reversed? Shouldn’t there be charges filed against the domain users? How long does someone have to wait for a notice. Also, if they’ve done something criminal, why is the ICE doing it, not the FBI? You also gloss over the 82 sites, saying they’re all illegal by law, but there’s at least one case where someone IS fighting it. Still, two or three were just music blogs. Funny how the government can come in to take down a site, but the process of putting it back up is far longer than making a new site. Even then, if the ICE decides to do another takedown in 90 days, it’s going to truly be a site to see when even MORE places come under government scrutiny with no 1st Amendment nor 4th Amendment rights. I guess taking down the entire internet just has to occurs in small steps.

I challenge both of you to name three ways copyright enforcement is truly important.

1 – Congress has a constitutional duty to secure the exclusive rights of authors, and the executive branch has a constitutional obligation to enforce these laws. 2 – Copyright is an incentive to create new expression, culture, and speech, and enforcing copyright ensures that the incentive doesn’t end up benefiting everyone except those who invest time and money in creation. 3 – Artist rights are human rights. I believe enforcing human rights is important.

“There is ZERO reliable evidence that file-sharing hurts sales. A shared file does not equal a lost sale, any more than someone reading a library book is a lost sale.”

On the contrary, the consensus of all reliable studies shows file-sharing hurts sales. It’s not a 1:1 correlation, but it’s certainly significant.

What truly disappoints me…

I’m sorry you’re disappointed. People are arrested every day, depriving them of their liberty. Property is seized all the time. All this happens under the Fourth Amendment requirements of a warrant issued by a neutral judge on the basis of probable cause. Why should domain names be treated differently?

ICE is doing it because the FBI is not the only law enforcement agency charged with enforcing federal law. The investigative and enforcement authority of federal laws is divided among many different agencies.

Rebuttal – “Anyone who takes seriously the international human rights of artists will find “Big Tech’s” dismissive use of “moral panic” to be deeply offensive to professional creators. It is Orwellian to describe as a “moral panic” an allegation of immorality being associated with massive illegal downloading that deprives creators of their ability to pursue work which they freely chose and remuneration for that work enabling them to achieve an adequate standard of living.”

Right at the beginning, he’s misleading. If someone is making money from various sources, do they need copyright to make them more popular? We already have a LOT of artists who have their music shared in various ways. The fact that an artist’s work is on a filesharing network deprives them of absolutely nothing. Youtube has videos of various artists. Copyright gets in the way of artists and their fans.

Glad to see the challenge but I’m still not seeing it…

1 – We’re both looking at Article 1 Section 8 but drawing different conclusions. How can life + 70 years progress the “Arts and Sciences”? How can the concept of copyright advance our culture?

2 – It truly hasn’t in all forms. It’s been used to stifle and stymie competition, which allows us to make better use of technology, since the inception of the Sonny Bono Act. The RIAA went after Napster. That didn’t stop filesharing. They went after Kazaa and Grokster. That didn’t work. In just the music industry alone, they’ve alienated their audience and thought that suing them for high damages would stifle filesharing as if it were a disease. Yet… The internet adapted to each disruption by driving filesharing further and further underground. You discuss the “Fall of Filesharing” but… It’s truly not accurate. I count at least five links (4 from me, 1 from Duke) that you seem to have ignored. One of them links to Oberholzer, who you used in your story, and updates the data they found. Actually, the video as the last part is still more from him regarding movie piracy!

And again… There’s been a LOT of artists that didn’t need copyright to get fans. The copyright has been about the middleman trying to stay relevant in a very dynamic new world. Payola is coming back,EMI is in trouble,

3 – Artists do not have a fundamental right to milk one song, one movie, one thing to death in perpetuity. That’s fully from heavy lobbying to Congress without any type of oversight into the effects of bad laws. I can only imagine how the Grateful Dead would be shared today if they tried to charge their fans $150,000 for each mixtape.

To say that copyright is truly fair is disingenious. I believe I’ve shown frequently that it doesn’t help make new art, merely assist older artists in keeping money flowing to them somehow. We won’t even talk about the litigation this forces unto litigation or the fact that newer research doesn’t factor into talks of patent, copyright or even trademark law.

First, domain names are where people establish a community on the web. That community builds around actions. Be it, learning a language or discussing music (as I mentioned in my link above), why should the government be allowed to disrupt that peaceful assembly with no prior incidents, the MPAA/RIAA saying “this site is bad” and a warrant that may have been gotten in the midnight hour? And yet again, I ask a question of how it is not censorship when we’ve yet to hear about trials for the people from June?

Finally, I’m aware of DHS having multiple departments of IP. It truly makes no sense but I’ve yet to find the correct laws that give ICE authorization for this.

One aspect of the practice of law that never ceases to surprise me is how often “settled” principles of law we take for granted. Your #1 is one such principle.

It is hornbook law that Article 1, Section 8, Clause 8 represents a power held by Congress that is discretionary vs. mandatory. Congress, if it so chooses, can forgego enactment of such legislation, thereby leaving authors and inventors to twist in the wind, so to speak. In other words, enactment is optiona,l and not obligatory.

What strikes me as quite odd, however, is that throughout the Constitution’s text the word “grant” is used repeatedly (sometimes in a prohibitory sense and sometimes in a positive sense), whereas the word “secure” is used but once in the context of a governmental power to act. Those who drafted the Constitution were certainly men of letters who parsed their words carefully. Thus, I have to wonder why it is that the terms “secure” and “grant” have beed interpreted to by synonyms, with to my knowledge no effort having been made by scholars to explore the question whether or not this is a valid interpretation and a reflection of what the drafters truly intended?

The above is not to suggest that the conventional wisdom is wrong, but merely to point out that words have meaning, and the choice of “secure” versus “grant” in Article 1 seems a bit odd. In my general lexicon “grant” conveys the concept of “giving” someone something to which the law does not deem an entitilement, whereas “secure” conveys the concept of of a preexisting right.

I, for one, despise loose ends, and this can be viewed as one such instance.

Another great article, Terry! Thanks for clearing up the difference between seizure and forfeiture. I’ve been mixing them up.

Correct me if I’m wrong, but one big difference I see between COICA and seizures like we have here is that under COICA they can go after domain names that aren’t managed in the U.S. “Operation in Our Sites” targeted domain names managed in the U.S., which allowed them to serve the seizure warrants on a U.S. company to get the domain name. COICA on the other hand would allow them to block access to domain names that are managed abroad. I’m not really sure if under the current law one could get a court to order that certain domain names not be resolved for U.S. internet users. If that’s the case, then COICA really does expand what the law can do, at least for domain names managed abroad anyway.

I love the bit about how “critics of the seizures seem to want to have their cake and eat it too.” I’m going to use that one in my future debates. So true.

Keep up the great work, and thanks for creating this copyright blog par excellence.

You’re correct about the differences between what remedies are available under current forfeiture law and what would be available under COICA — and indeed, one of the advantages COICA offers is how it addresses domains not registered in the US, which make up a large portion of sites that infringe US works.

COICA sets up requirements for service providers, financial transaction providers, and online advertisement providers to cut off their services if the AG takes action against a nondomestic domain name.

I would argue that this isn’t so much an “expansion” of law as it is a streamlining of enforcement. Witness the lawsuits against Triton Media and Frontline – these types of service providers can be held liable for indirectly infringing IP. What COICA would provide is some certainty and stability to both service providers and copyright owners.

Otherwise, as these domain name seizures illustrate, all parties involved are left with a sort of “ad hoc” situation. I don’t fully know the strategy of ICE in these operations as they are not commenting much because it involves ongoing investigations. My guess is that these seizures are like test cases, perhaps in anticipation of COICA.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.